Mr.
Llwyd: The amendment, which would place a duty on local
authorities is reasonable, and would improve the Bill. The question is
whether they have the necessary money and expertise to take enforcement
action. I understand the principle, and it is a good
idea. I should like to
ask the Minister one or two questions, given that we did not succeed in
the attempt to bring proportionality into clause 38 by inserting the
word “materially” to avoid de minimis cases. The
enforcement duty for infringements will lie with county councils, local
authorities and parish councils. That will open it up to every person
on the street. It is to be hoped that people will not use the law for
the wrong reasons or pursue minor infringements such as the use of
temporary pens for collecting sheep, butts for shooting and so on. That
is a danger. We have
had this debate twice before, and I do not want to delay matters. The
Minister says that the county court will not make an order, but getting
that far is a waste of the court’s time and everybody’s
money. It is undesirable that the Bill should leave an avenue open for
people to take what might well be vexatious action for whatever
reason—they might have a personal grudge; I do not know. I am
concerned about the provision, because it could be
misused. My second
question for the Minister is whether, having given individuals the
right to litigate by taking such matters to court, the clause would
enable them to take enforcement action against perceived existing
breaches as well as future ones. I can anticipate his
response to my first question, because we have been over that ground,
but I should like him to respond to my second question about whether
the clause would cover existing
breaches. Jim
Knight: I will think about that last point while I deal
specifically with amendment No. 78, which would place a duty on commons
registration authorities to resist encroachment on common land. I am
grateful to my hon. Friend the Member for Stroud for tabling
it. The Bill goes
some way toward improving controls on works on common land. It will
clarify the application of the controls, modernise the consent regime
and, as we heard, enable any person to enforce against unlawful works.
It will no longer be possible to ignore the controls in the hope that
they will not be
enforced. As I have
said, I want Natural England and the Countryside Council for Wales to
become the Government’s champions for the management and
well-being of common land. We see a role for them in encouraging
communities to take a more proactive attitude to protecting their
common
land. Registration
authorities, in common with other councils, will have power to enforce
against encroachments, but my hon. Friend will appreciate our position
on the matter. A local authority’s priorities are for the
authority, and not central Government, to decide. It is appropriate to
give the power but not the duty.
The Bill is not just a
legislative instrument. It will raise the profile of common land. We
will be working closely with local government in the next few years to
implement the legislation, assuming that it becomes an Act. That will
involve issuing circulars explaining authorities’ powers as well
as their duties under the Act and encouraging their greater involvement
in the management of common
land. I counsel my
hon. Friend against seeing new duties necessarily as a solution to a
problem. I am sure that he shares my desire to see greater access to
the countryside, but duties alone are not always fulfilled, as we have
seen with the management of the public rights of way network by certain
local highway authorities in certain parts of the country. It is only
as a result of a combination of new duties—such as rights of way
improvement plans, together with guidance and a great deal of hard work
by, in the case of England, the Natural England partners and the
Department for Environment, Food and Rural Affairs in raising the
profile of rights of way in the past few years—that we are now
seeing results in making the network better available for use. I want
to see a similar effort made to raise the status of common
land.
Mr.
Drew: I understand what my hon. Friend is saying.
Obviously, I shall not be pressing the amendment to a Division, but I
am interested in the difference between someone who blocks a common and
someone who blocks a road. A local authority has a duty to keep the
highway open as, incidentally, do members of the public, who operate
under a power if they see someone blocking the highway for whatever
reason. The clause is really about consistency and making sure that
local authorities do what they should
do. As we know from previous debates, there are cases where, because of
the parking of a vehicle or some other reason, a local authority can
choose to do nothing. That is just not
acceptable.
Jim
Knight: There are all sorts of rights of way and local
authorities make their judgments about the blockages on them. If it is
a busy highway, they are more likely to take action than if it were a
quiet footpath. They exercise their duties with discretion, and that is
my point. Therefore, I can not accept the amendment, but I hope that my
hon. Friend will accept that the Bill takes us into a new era for
common land. I am confident that, in future, the profile of common land
will be much higher and the controls far less likely to be breached
with impunity. We all have a role in encouraging local authorities to
use their powers in the public interest and I know that all members of
the Committee are keen to protect and enhance our commons.
With respect to the comments
made by the hon. Member for Meirionnydd Nant Conwy about retrospective
enforcement against existing unlawful works, there was significant
debate in the other place where views on both sides were expressed. We
amended the Bill on Third Reading in the other place to prevent any
person from taking enforcement action against unlawful works before its
introduction. Local authorities and the legal interest in the land
remain able to enforce against such works within the normal time
limits. On reflection, we do not feel that it is fair to extend
retrospectively the scope for enforcement in that situation. I see the
hon. Gentleman nodding and therefore hope that my explanation is
sufficient. I ask him not to press the
amendment.
Mr.
Drew: I am concerned that, under clause 42, power will be
granted to local registration authorities to amend existing schemes of
work. Although we have to be careful that we are not allowing a
diminution of the responsibility of local authorities, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Jim
Knight: I beg to move amendment No. 16, in clause 41, page
23, line 41, leave out from ‘order' to end of line
42.
The
Chairman: With this it will be convenient to discuss the
following: Government amendments Nos. 17 and
18. Amendment No. 79,
in clause 41, page 24, line 4, at end
add— ‘(2A) If the person
carrying out the works fails to comply with an order under this
section, an eligible person may carry out any outstanding requirements
of the order and recover from the person in default the costs
reasonably incurred by the eligible person in doing
so. (2B) If an eligible person
other than a local authority considers that outstanding requirements
under subsection (2A) are beyond the capability or resources of that
person, they may require an appropriate local authority to carry out
those
requirements.'. Amendment
No. 80, in clause 41, page 24, line 4, at end add—
(a) If a person fails without reasonable excuse to
comply with an order under subsection (2) above, he is guilty of an
offence and liable to a fine not exceeding level 5 on the standard
scale; and if the offence is continued after conviction he is guilty of
a further offence and liable to a fine not exceeding one-twentieth of
that level for each day on which the offence is so
continued. (b) Where, after a
person is convicted of an offence under paragraph (a) above, the local
authority for the common concerned exercise any power to remove the
cause of the obstruction, they may recover from that person the amount
of any expenses reasonably incurred by them in, or in connection with,
doing
so.'.
Jim
Knight: The Government amendments are technical. I hope
that the Committee will accept
them. Amendment
agreed
to. Amendments
made: No. 17, in clause 41, page 23, line 43, leave
out ‘to remove the works and
restore' and
insert ‘for removal of the works
and restoration
of' No. 18,
in clause 41, page 24, line 3, leave
out ‘to carry out the
works' and
insert ‘for the works to be carried
out'—[Jim
Knight.] Clause
41, as amended, ordered to stand part of the
Bill.
Clause
42Schemes 2
pm
Jim
Knight: I beg to move amendment No. 19, in clause 42, page
24, line 9, leave out ‘at the
commencement of this
section'
The
Chairman: With this it will be convenient to discuss the
following: Government amendments Nos. 20 and
21. Amendment No. 81,
in clause 42, page 24, line 13, leave out subsection
(3). Government
amendments Nos. 22 and
23.
Jim
Knight: Again, these are technical amendments, which I do
not propose to comment on. I shall do the equivalent of moving them
formally, while allowing my hon. Friend the Member for Stroud to get up
and speak—should he really need to—in respect of his
amendment.
Mr.
Drew: I shall be quicker on my feet in future. They used
to say that when I played football.
Amendment No. 81 is intended to
probe the Government by examining the powers to override existing
schemes of management, which links directly with what I said about
clause 41. I want to probe what the Government intend as the normal way
of doing
things. The amendment would ensure that the appropriate national
authority cannot override an absolute prohibition of works contained in
an existing scheme of management. Schemes of management are
important because they are the existing way in which things have been
done and it would be wrong if the Bill superseded schemes that are
already working well. Where they are not working well, I hope that Bill
will give them a kick up the backside and make them improve.
It is somewhat sad that the
clause appears to weaken the way in which existing schemes of
management operate and I am looking for the Minister to assure me that
that is not the intention. Where long-standing schemes—I could
list them, but I shall not—are extant and deserve recognition,
they do not need alteration. I hope that he will assure me that the
Government’s intention is not to disrupt some of these schemes
that go back a long way in history and work very
successfully.
Jim
Knight: Clause 42, as a whole, applies to land covered by
an existing management scheme under either the Metropolitan Commons Act
1866 or the Commons Act 1899. Where the terms of such a scheme prohibit
works without any scope for any person to consent to them, the clause
allows such works if they receive consent under clause 38. Where such a
scheme provides that works are permissible with the consent of the
national authority, consent has to be given under the criteria set out
in clause 38. These measures are designed to increase flexibility while
improving consistency.
I shall resist my hon.
Friend’s amendment because it would be a retrograde step. The
whole point of subsection (3) is to avoid an absolute ban under an
existing scheme on works on a common that would be beneficial, for
example, by helping visitors to enjoy the common. This is not a matter
of covering scheme commons with major new developments or removing
people’s access rights. Rather, it is a matter of having the
ability to do something if it is appropriate for the land, taking into
the account all the checks and balances that the consenting scheme
system involves and all the views expressed to the national authority
on the subject. We do not want to shut down that new flexibility and I
hope that my hon. Friend will not seek to press his amendment to a
Division.
Amendment agreed
to. Amendments
made: No. 20, in clause 42, page 24, line 11,
after ‘Metropolitan Commons Act
1866 (c.
122)' insert ‘which
is in force at the commencement of this
section' No.
21, in clause 42, page 24, line 12, at end
insert ‘which is in force at the
commencement of this
section' No.
22, in clause 42, page 24, line 20, at end
insert ‘and of any owner of the
land (if not the person carrying out the
works)' No.
23, in clause 42, page 24, line 20, at end
insert— ‘( ) Regulations may
make provision as to the procedure to be followed in obtaining the
consent of an owner under subsection (3) (and may include provision for
the consent of an owner to be
regarded as having been given where he has not objected within a period
of time specified in the regulations).'— [Jim
Knight.]Clause 42, as amended,
ordered to stand part of the Bill.
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